Pillsbury Doughboy mauls techies

Trademark wars online, Part LXVIII: No more bake-offs for software developers!

Published January 19, 2001 11:47PM (EST)

Welcome, Web fans, to the Word War Smackdown, a battle of old economy vs. new. In this corner sits Pillsbury, the world's 131-year-old sugar-pusher, creator of the Strudelpalooza tour and a white, pudgy brand-man that laughs like a baby. In the other: geeks, pizza-eating, algorithm-loving computer scientists seeking to network the world.

At stake: use of the word "bake-off."

That's right: Just when you think the battle over domain names and trademarks can get no more ridiculous, Pillsbury goes and ups the ante. Universities and companies as large as Sun Microsystems received cease-and-desist letters this week ordering engineers to stop holding what the oh-so-sweet company considers illegal "bake-offs." But it's not as if the engineers are huddling together around the oven trading stolen recipes -- in techie lingo, a "bake-off" is a get-together in which software programmers test their creations against network protocols to see if they will work correctly. Or, as one site put it, these are "events where engineers get together to test their implementations against each other." No matter: The geeks are infringing on Pillsbury's "bake-off trademark," the letters argued. They're causing confusion, sullying the term, trashing the down-home originality that inspired Pillsbury to trademark the phrase back in 1949.

As far as the computer scientists are concerned, the claim is appalling and unfounded for several reasons. First: "The term has been used long before the Web for pre-Arpanet interoperability meetings," says Henning Schulzrinne, an associate professor of computer science at Columbia University -- and a bake-off organizer who received two cease-and-desist letters from Pillsbury. Since trademark law requires that companies police their marks and because there's proof that Pillsbury did not -- "we dug back into old [documents] and found one from 1987 that ties use of the term back to 1979," Schulzrinne says -- Pillsbury will have a hard time proving that it hasn't lost control of the term. Chances are, geeks say, the court would treat "bake-off" like "aspirin," Bayer's once-trademarked word that entered the public domain after it was diluted by use.

"They're saying that no one can use the term," Schulzrinne says. "They're asking us to strike it from the technology vocabulary. It's just not right. It's a sign that people are trying to reach far too wide with their trademark claims."

Plus, lawyers add, geeky bake-offs have another aspect of trademark law in their favor -- the lack of consumer confusion. If a term serves to hoodwink customers, a company can sue for infringement, but if there's a clear differentiation, no dice. This is why Coke can be both the name of a soft drink and a mineral, says Michael Froomkin, a law professor at the University of Miami. And while the Net's domain-name system has thrown the trademark system into disarray -- witness the battle between EToys and etoy -- there's no reason why "bake-off" shouldn't belong both to geeks and to Pillsbury.

"No one is going to confuse protocol testing with cookies," says Brian Rosen, an engineer who organizes bake-offs to test a Net telephony protocol. When hundreds of engineers show up, as they often do, Schulzrinne says, "no one comes with a casserole in hand."

The fiasco is especially frustrating because Pillsbury has failed to recognize the important role that technology bake-offs play. "If we were having some sort of pornography contest, I might understand their claim that we were hurting their image," he says. "But what we're doing is beneficial to their term and to the worldwide community. These meetings are usually not-for-profit research efforts, nothing more."

Pillsbury's lawyers had no comment on such complaints; calls to the company's lawyers were not returned. But Rosen says the company hasn't heard the last from the riled geeks. "The idea that they would go after Columbia is just nuts," he says. "It really pisses me off. I want to go out and boycott them. It would be great: tech weenies vs. the Doughboy."

By Damien Cave

Damien Cave is an associate editor at Rolling Stone and a contributing writer at Salon.

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